Date: 19990506
Docket: A-610-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
FINBAR KEVIN CHARLES,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba
on Wednesday, May 5, 1999)
STRAYER J.A.
[1] We are all of the view that this appeal should be dismissed.
[2] This is an appeal founded on the following question certified pursuant to section 83 of the Immigration Act by Hugessen J. of the Trial Division:
| "On an application for humanitarian and compassionate relief is it a breach of the duty of fairness to deny counsel the right to assist the applicant with his or her responses?" |
We must confine our answer to the particular circumstances of this case. From the evidence and the reasons of the learned applications judge we understand the term "assist the applicant with his or her responses" to mean "to pose questions to the applicant or to suggest responses to him or her".
[3] On the basis of this understanding of the question we are of the opinion that the answer must be "no". Consistently with the jurisprudence of this Court,1 we believe that the requirements of fairness are very limited in the processing of requests for special ministerial exemptions from the law under subsection 114(2) of the Immigration Act, based on humanitarian and compassionate grounds. As no hearing or interview is required it would be surprising that an interview if held were required to take on aspects of a judicial process.
[4] Hugessen J. left open the question as to the extent of counsel's right to make representations, as that is not an issue raised by this case. For the same reasons we will make no comments on that subject.
[5] The question will therefore be answered in the negative and the appeal will be dismissed with costs.
[6] We also wish to note that at the opening of the hearing of the appeal, counsel for the Canadian Bar Association appeared to apply for leave to intervene. As part of her proposed intervention she submitted a memorandum of fact and law prepared by Mr. David Matas which essentially supported the position of the appellant.
[7] We dismissed this motion because of the delay in making it. The judgment appealed from was issued on October 7, 1998. Presumably at about that time it came to the attention of Mr. David Davis, counsel here and below for the appellant, who filed a notice of appeal on October 15, 1998. According to the affidavit of Barry Gorlick, President of the Canadian Bar Association (CBA), filed in support of this motion for leave to intervene, Mr. Davis, counsel for the appellant who also happens to be chair of the Manitoba branch of the immigration law sub-section of the CBA, referred the Trial Division judgment to his section executive on April 11, 1999, some six months after it was issued. Only then did the Immigration law section executive, and then the CBA executive, approve this application to intervene.
[8] In the meantime, on April 1, 1999 the Court fixed a hearing date of May 5, 1999 for the hearing of this appeal. The CBA's notice of motion to intervene was not filed until May 3, 1999, two days before the hearing, and it was accompanied by a memorandum of fact and law of 33 pages. That was the first opportunity the Court and the respondent had to consider this material.
[9] In the circumstances we refused to allow the motion for intervention because of the delay.
"B.L. Strayer"
J.A.
Winnipeg, Manitoba
May 6, 1999
Date: 19990506
Docket: A-610-98
CORAM: STRAYER J.A.
ROBERTSON J.A.
SEXTON J.A.
BETWEEN:
FINBAR KEVIN CHARLES,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
Heard at Winnipeg, Manitoba, Thursday, on May 5, 1999.
Judgment delivered at Winnipeg, Manitoba, on May 5, 1999.
REASONS FOR JUDGMENT BY: STRAYER J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: A-610-98
APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DATED 7 OCTOBER 1998, TRIAL DIVISION FILE NO. IMM-164-98.
| STYLE OF CAUSE: FINBAR KEVIN CHARLES v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 5, 1999
REASONS FOR JUDGMENT STRAYER J.A.
OF THE COURT: ROBERTSON J.A
SEXTON J.A.
DELIVERED BY: STRAYER J.A.
DATED: May 6, 1999
APPEARANCES
David Davis for the Applicant
Cynthia Myslicki
Department of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Respondent
SOLICITORS OF RECORD
David Davis
Davis Immigration Law
800 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6 for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
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